The ruling of the Constitutional Court of 23 June 2015, file reference number SK 32/14
Legal status before 1 July 2015
So far, a third party infringing an author’s copyrights was required to pay damages. In the case of culpable use of copyrights, such damages amounted to three times the fees payable to the Author. In the case of faultless infringement of copyright, the damages amounted to twice the fees payable to the Author (art. 79 section 1 point 3 of the Act on Copyright and Related Rights).
Damages in the amount of three times the fees payable to the Author are unconstitutional.
However, on 23 June 2015, the Constitutional Court ruled that the right to demand damages in the amount of three times the fees payable to the Author, in the case of culpable violation of copyright (art. 79 section 1 point 3 letter b of the Act on Copyright and Related Rights), was inconsistent with the Constitution of the Republic of Poland. The Court ruled that authors were no longer the weaker party in dealings with third parties mainly due to the strongly institutional nature of copyright protection – the operation of associations and organisations involved in collective management of copyrights, such as ZAiKS. The Constitutional Court stated, at the same time, that the rights currently available to the Author whose copyrights have been intentionally infringed upon, against the infringing third party, are too excessive.
Consequences of the Ruling of the Constitutional Court
On 1 July 2015, the challenged provision ceased to be effective. Instead of demanding damages in the amount of three times the fees payable to the Author, in the case of culpable violation of copyright, the Author is entitled to claim damages on general principles, i.e. compensation for damages and lost profits.
What is more, any rulings made on the basis of the contested provision may be now challenged and authors may be awarded lower damages – through the institution of an application for revision.
Nevertheless, the Constitutional Court did not challenge damages for unintentional infringement of copyright in the amount of twice the fees payable to the Author. This gives rise to the conclusion that the infringing party should seek to obtain a ruling on the culpable infringement of copyright by such party, because in this case, damages will be lower.
In my opinion, this law needs to be amended as soon as possible due to the twofold interpretation of copyright violation. This interpretation is completely illogical since culpable infringement gives rise to lower damages than unintentional infringement.
The impact of the ruling of the Constitutional Court on the copyright market.
In my opinion, this ruling of the Constitutional Court should be regarded as revolutionary! It alters, in a significant manner, the balance of power between owners of copyrights and third parties violating the same. Copyright protection has been significantly reduced.
This ruling will also contribute to a more thorough discussion on the awareness of copyright infringement. In addition, it will further enhance the role of institutions involved in collective management of copyrights.
Legal counsel, CEO
Marcin specialises in advising on acquisition and implementation of public contracts: analysis of tender documentation, assistance in the preparation of bids, participating in negotiating o the contract with the Contracting Authority, and participating in the contract implementation process. He guides clients through the appeal procedure before the National Board of Appeal and Regional Courts. Read more